At Wednesday's hearing, a federal judge may be leaning toward the GOP states' argument, unlike most legal experts.

MIAMI, FL - NOVEMBER 01: A computer screen shows the enrollment page for the Affordable Care Act on November 1, 2017 in Miami, Florida. The open enrollment period to sign up for a health plan under the Affordable Care Act started today and runs until Dec. 15. (Photo by Joe Raedle/Getty Images)

Legal scholars, even Obamacare’s loudest critics, believe the health law can stand without the individual mandate — and yet, a Texas federal judge appears to be skeptical.

Federal Judge Reed O’Connor, a George W. Bush appointee and wildcard who’s ruled against the Affordable Care Act (ACA) in the past, listened to oral arguments Wednesday in Texas v. United States, the latest attempt to eliminate the 2010 health care law. O’Connor hasn’t formally decided if he agrees with the 20 GOP states suing to temporarily block the enforcement of some or all of the ACA in 2019, while the lawsuit is argued in full. But he sounded doubtful that the ACA could stand if he decides the individual mandate, the requirement to have insurance or be taxed, is unconstitutional, according to Modern Healthcare’s Susannah Luthi.

One of several things could happen: The judge could let the ACA stand, strike down the individual mandate, strike down the mandate and protections for people with pre-existing conditions, or strike down the law in its entirety. The Justice Department (DOJ), which is arguing that only the mandate and consumer protections should be tossed, asked the judge to postpone his judgement until after the Obamacare open enrollment period in November, which coincides with midterm elections.

“The last thing we want is for chaos in the market,” said DOJ attorney Brett Schumat.

The judge focused on “severability,” a legal term referring to whether a court should strike down a law after ruling a part of it unconstitutional. The 18 Republican state attorneys general and two governors are arguing that Obamacare can’t stand without an effective individual mandate because Congress zeroed out the penalty when they passed their tax overhaul bill in December. Unlike most legal experts, the federal judge took this argument seriously, asking about why he should only look at the 115th Congress’ decision to repeal the mandate and not the 111th Congress, which wrote the law and called it essential.

According to Luthi, who was in the courtroom on Wednesday:

O’Connor was much tougher in his questioning of the Democratic lawyers than he was of the GOP states attorneys general who filed the suit to invalidate the law…

“It does seem for majority of cases, the Supreme Court says to look at the original legislation as enacted,” O’Connor said. “Why would I not? Let’s assume I don’t buy the argument it is still a tax and believe the mandate should fall and I get to severability, why wouldn’t I look at those cases?”

He also said, “It appears to me that every single justice who considered this essentially says Congress is clear … you cannot separate individual mandate from community rating, guaranteed issue.”

Advertisement

A lawyer inside the courtroom who asked not to be named on Wednesday told ThinkProgress she agreed with Luthi’s read. O’Connor dedicated a great deal of time on severability and not on other important questions, like how the 20 GOP states are harmed by Congress’ decision to zero out the tax penalty starting in 2019, she said.

A California attorney defending Obamacare — because the DOJ bowed out in June — argued that Congress wrote that the individual mandate was essential to creating effective health insurance markets. But the mandate isn’t essential to continuing or maintaining the law. And the only reason Congress didn’t amend the ACA’s statutory language around protections for people with pre-existing conditions was because they repealed the mandate through reconciliation — a procedure Congress took because Republicans didn’t have enough votes to repeal it through regular order. Though it was a convincing argument, the judge appeared skeptical of it, she said.

“He was very sympathetic to the argument that at least the individual mandate and consumer protections should be struck down,” the lawyer told ThinkProgress. “Conservative Judge O’Connor was very light on the conservative parties involved in this case and was very not for the ‘blue states’ that had intervened in the case — and that showed in his questioning. And I think that is an important tea leaf, if not confirmative, and really shows the danger of having ideological judges on the court.”

Outside experts believe if the ACA is struck down, the blue states will request a stay of any injunction while it is being appealed.